Secrecy Is The Opposite Of Democracy

I was recently in the northern African country of Tunisia, where I was invited to talk about the importance of government transparency. What was on the minds of many Tunisians has considerable bearing on lawmaking here in Connecticut and, for that matter, the lawmaking now all too common throughout the United States.

In 2011, popular demonstrations led to the ouster of longtime dictator Tunisian Zine el-Abidine Ben Ali. The so-called "Jasmine Revolution" inspired other Arab countries to do likewise in what became known as the "Arab Spring." Many Tunisians, however, fear that their revolution, organized and led primarily by secular civil society, will be hijacked by Islamic fundamentalists who dominate the interim government and who are writing a new constitution and laws behind closed doors.

In a democracy, transparency is essential in lawmaking. It increases the public accountability of the lawmakers. It raises the public's confidence that all voices are heard. And it helps ensure that the laws are rational and in the public interest.

Transparent lawmaking means the public knows what's happening at each stage of the process — not just at lengthy hearings, where speakers get a few minutes each to comment on complex subjects, or at a choreographed floor debate after the real debate was held in closed party caucuses. Good lawmaking contemplates an open and robust discussion in the House and Senate chambers, as well as in the news media, and now over the Internet. It's the converse of the closed process that characterizes non-democratic governments.

Before Connecticut enacted laws in response to the tragedy in Newtown, there were many opportunities for members of the public to express their views. Indeed, vastly differing viewpoints were expressed. But before the legislature voted on two important bills, the process stopped being transparent and became closed and highly secretive.

There's an axiom in lawmaking that "the devil is in the details." The details of Connecticut's recently enacted gun bill, for example, comprise 84 pages in 99 separate sections. The contents were negotiated in secret by a few key leaders, ostensibly to promote bipartisanship — although how secrecy promotes bipartisanship is elusive.

Among the bill's provisions is one that creates a registry of people convicted of gun-related crimes. The registry, however, is not public. It's available only to law enforcement.

Connecticut has a sex offender registry that's publicly available online. So when people were finally able to read the gun bill, many wondered why the gun offender registry wasn't also public. If we have the right to know whether a neighbor was convicted of a sex crime, why shouldn't we know whether a neighbor was convicted of a crime involving a firearm?

Similarly, the legislature is considering a bill that would create a "special act" significantly curtailing public access to information about the Sandy Hook Elementary School murders. Among other things, the bill would cut off access to death certificates, 911 recordings, and photographs and videos — all of which are generally available in other cases. The proposed special act was negotiated and drafted in secret and became known only after an email came to the attention of an alert reporter.

The premise for negotiating and writing legislation in secret seems to be that it's easier to get things done without the public watching. In effect, the argument is that the end (getting a bill passed) justifies the means (secret lawmaking).

But does it? Or is the cost to democracy too high when a small group dictates the details of important legislation by co-opting a process that proclaims transparency, but in reality is closed and opaque at the most critical times?

As in Tunisia, Americans should fear that the lawmaking process is being hijacked. In our case, there are groups of government leaders who, for whatever reasons, take it upon themselves to forego transparency in an attempt to craft — or block — legislation. They make deals in secret. They include "rats" or "earmarks" — special interest provisions that often have not even been vetted in public hearings — hidden within the verbiage of complicated bills, such as essential budget implementers, that must be enacted into law. They sacrifice — at the most important stages of lawmaking — the open and robust public debate that democracy requires.

If this unfortunate trend continues unabated, we'll not only have more laws passed that are not in the public interest, we may also find ourselves living in a state and country that are democratic in name only.

Mitchell W. Pearlman is the author of the book "Piercing the Veil of Secrecy: Lessons in the Fight for Freedom of Information." He is former executive director of the Connecticut Freedom of Information Commission and teaches media law at the University of Connecticut.